Cruel and Unusual Punishment Without a Trial

A judge reads a “Guilty” verdict. The defendant hangs his head.

“Of course,” the judge says, “you are free to go.”

The defendant raises his head hopefully, thinking he’s going to get “time served.”

“You may leave here today. However, at an undisclosed time, a S.W.A.T. van will arrive at your house. Men clad in military armor, holding military-grade rifles, will walk up to your door and break it down with a battering ram. Your dogs will be shot. Your wife and children will be terrorized, as will any guests who might be present. They will be handled roughly and held captive at gunpoint. A flash-bang grenade will be detonated in your living room. Your possessions will be destroyed. Your windows will be smashed from the outside, not for the sake of entry or even viewing inside, but deliberately to terrorize anyone inside. Based on legal precedent, the raiding officers are free to handle you, your family members, and your belongings as roughly as they like without any fear of significant legal consequences. As I said, you are now free to go.”

Anyone with half a conscience would view such a punishment as cruel. Such a sentence would certainly be unusual. And yet this kind of terror is inflicted on families all the time without a trial. S.W.A.T. raids matching the judge's description are done routinely to serve drug warrants, which are naturally served before the suspect (victim) has gone to trial. Often they hit the wrong house. Often the get the “right” house (as in, the address listed on the warrant) but there is no evidence of any crime or wrongdoing. Often they hit the right house and the suspect is indeed “guilty” of selling drugs, but his family is needlessly terrorized. Those same cops could have waited him our or picked him up while away from his house. Often times they don’t bother to check and see if there are children in the house, or they “check” but don’t do their due diligence and end up raiding a home with young children inside. Sometimes they injure or kill an innocent person. Sometimes the homeowners think they are being robbed and shoot at the cops. This is usually lethal for the homeowner, and sometimes for the raiding police officers. It is worth reiterating that this tactic is used against people who are merely suspected of non-violent drug offenses, not even convicted and not having the chance to cross-examine their accusers. This is cruel and unusual punishment, plain and simple, without the benefit of a trial as guaranteed in the constitution.

I’m sure some clever lawyer on the side of the drug warriors could offer a pedantic legal rationale for this atrocity. “Silly plebeian, not of the legal tribe. Let me explain how this works to you…” And then they could rattle off various legal rationales: exigent circumstances, statutes supposedly granting authority to violate the constitution, rulings by pliant judges using dubious legal reasoning. (Radley Balko of the Washington Post has described his frustration with such legal pedants reacting to his writings.) But the pedant is wrong. Constitutions are supposed to spell out our rights in plain language such that clever government lawyers can’t simply argue those rights away. If the constitution states that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted,” I don’t need a law degree to understand that. I don’t require a detailed knowledge of hundreds of years of legal rulings and judicial decisions to know my rights, because they are stated plainly enough for everyone to understand. The government is bound by the plain language that the man on the street can understand. It can't make those plainly stated rights conditional, disappearing when one out of thousands of esoteric exceptions is triggered. Sure, there may be borderline cases, but the terror of a no-knock S.W.A.T. raid does not come close to being borderline. I have personally gotten the “Let me explain how this works to you…” lecture from both drug cops and prosecutors. (Not that I was in trouble, just arguing with them on social media.) I think they were all being incredibly obtuse. I think you really have to be deeply morally compromised to become an apologist for this kind of thing. They are so inured to the banal horrors of drug policing that the prospect of terrorizing an innocent family is no longer shocking to the conscience. 

I’ve recently been reading Rise of the Warrior Cop by Radley Balko for probably the fourth or fifth time. It is gripping and infuriating. The kind of police raid described by the hypothetical judge above is common, happening perhaps a hundred times a day (based on statistics about numbers of drug warrants served and S.W.A.T. team deployments). That number could basically fall to zero and the drug problem would not be any worse than it is today. It’s an absolutely pointless tactic, designed more to terrorize than to achieve anything tangible.

Yes, this is me baring my moral outrage. You’ll have to pardon me for indulging it. Completely gratuitous violence is one of my triggers, particularly when it’s aimed at non-violent offenders and completely innocent people. I'm still willing to put that aside and have a reasonable, rational discussion with anyone who's interested. But if I'm being totally honest, this kind of thing really disturbs me.